Wichita eagle. [volume] (Wichita, Kan.) 1886-1890, 1887-12-06
Justice Harlan's Decision In thc
Two Kansas S0-Called Pro-
hibitiOn Cases
Tho Present Law in Keeping With the
Fourteenth MISUNDERSTANDING
Right to Remove DiStilleries
Without Making Good the Loss to Inc
Owner of Such Places-0ther
Washington News.


others. The Judgment of the court was
pronounced in long and elaborate oplh-
ion by Justice Harlan, who said: line
general question in such case is, whether
the prohibition statutes of Kansas are III
conflict with that clause of the fourteenth
amendment, which provides that
no state shall make or en-
force any law which shall
abridge the privileges or immunities OF
citizens Of the United States; nor shall
any state deprive any person OF lire, liberty
or property, without due process OF law;
that legislation by state prohibiting the
manufacture within its limits of intoXI-
eating liquors to be resold or bartered Tor
general use as a beverage, does not neces-
sarily infringe on any right, priv
ilege or immunities secured by
the constitution Of the United
States is made clear by the decisions Of
this court, rendered before and since the
adoption of the Fourteeth amendment is,
however, contended that although the
state may prohibit the manufacture OF in
toXicating liquors for sale or barter within
her limits for general use as beverage, no
convention or legislature has the rlSnt
under our form of government TO prohibit
any citizen from manufacturing Tor MS
own use or for export of storage, any
article of food or drink not endan-
gering or affecting the rights of others.
The argument made III support of the first
branch of this proposition briefly stated
is, that in the implied compacts between
the state and the citizen, certain rights are
l.1tt
teed by the constitutional provisions for
the protection Of life. liberty and property
against deprivation without due process
of law, and with which the state cannot
interfere: that among those rights
is that of manufacturing for
ones own USE, either food
or drink; that. while according to
may control the tastes, appetites, habits,
dress, food and drink of the citizen, our
system of government, based upon the
individuality and intelligence of the peo-
pie, does not claim to control him except
as to his conduct to others, leaving him
the sole judge as to all that
only affects himself 1t will
be observed that the PROPOSE
ton and the argument made in support of
:. equally concede that the right TO manu-
Ia IL drink for ones personal use is suject
go the condition that such manufacturer
does not endanger or affect the rights of
others. If such manufacture does pre-
Judicially affect the rights and interests OF
the community, it follows from the very
premises stated by counsel that society
has the power to protect itself by legisla-
ton against the injurious consequences of
that business. AS was said in Mum vs.
Illinois, (94 L. 5. 12D while power does
not exist with the whole people to control
rights that are purely and eX-
eli al,- TO no
require each citizen to so conduct himself
and to so use his own property as not un-
necessarily to lnJure another. by whom
or by what authority is it to be determined
whether the manufacture of particular
articles of drink. either for general use or
for the personal use of the maker, Will in
juriOusfy effect the public power to deter
mine such question 50 as to by lis all must
exist somewhere, society Will be at the
mercy of the few who, regarding only their
own appetiteS or passions may be willing
to imperil the peace and security of many
provided only they are permitted 10 do as
they please. Under orr system that power
is lodged with the legislative branches
of the government, it belongs to that de
partment to exert what are known
Is the police powers of the state 1t must
determine, primarily, what measures are
appropriate or needful for the protection
OF the public morals, the public health or
the public safety. 1t does not all follow
from these principles that every statnte
exacted oStensibly for the promotion of
these ends is to be accepted as a legitimate
eNertion of the police powers of the stat
ute; they are of necessity limits beyond
which legislation can not rightfully go
As the courts must obey the constitution
rather than the law making department of
its responsibility, determine whcth-
er, in any particular case these
limits nave been passed. The courts are
not bound by mere forms. nor are they to
be misled by mere pretenses. They are at
liberty. indeed, are under solemn duty.
TO look at the substance OF things whenev-
err they enter upon the inquiry whether
the legislature has transcribed the limits
OF its authority. If, therefore, statute
purporting to have been enacted TO pro-
tect the public health, the public morals
or the public safety, has no real or sub
stantlal relation to those objects. or is a
palpable invasion of rights secured by the
fundamental law, it is tie duty Of the
courts to SO adjudge, and thereby give eff
feet to the constitution. Keeping
in view these principles, as
governing the relations with each other of
the Judicial and legislative departments of
government, il Is difficult to perceive anv
ground for that Judiciary to declare that
the prohibition by Kansas of the manu-
eating liquors tor general use as a bever-
age, is not fairly adapted TO the end of pro-
tectlng the community which confessedly
result from the excessive use of ardent
spirits. There is here no justification for
holding that the state under merely notice
regulations, is aiming To deprive the citi-
Zens of his constitutional rights for we
cannot shut out Of view the fact, within
the knowlege of ali. that the public seal,
Shat the public morals and the DubIic
safety may be endangered by the general
Use Of intoxicating drinks. Nor can we
ignore the fact established by statistics ac-
ceslble to every one, that the disorder.
pauperism, any directly tTaceable to this
evil. If, therefore, a state deems the ahso-
lutte prohibition of the manufacture ana
sale within her limits of Intoxicating
liquors, for other than medical, scientific
and manufacturing purposes, TO he
necessary 10 the peace and security
OF society, the courts cannot. without
usurping legislative functions. override
the VIII of the people As thus expressed by
their chosen Representatives. II is a
fundamental principle III oUr institutions.
ana indispensable 10 the preservation OF
public liberty. that one OF the separate de
partments OF the government shall not
usurp powers committed by the constitu-
Son to another department, and so. if the
legislature allow the manufacture of in
toxicating liquors for the makers
own use as a beverage would
tend 10 cripple if not TO
d. defeat her efforts to guard the community
against the evils attending the excessive
use OF such liquors, it is not for the courts
upon their views as TO what is best and
safe for the community. to disregard thp
legislative determination on that question.
30 lar from such regulation being inap-
proprlate TO the general end sought TO be
accomplished, it is easy to he seen that the
entire scheme of prohibition, as embodied in
sne constitution and laws of Kansas, might
Iall If the rights Of aach n;.;...., =, -.